The Supreme Court on Wednesday commenced hearing the petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excluded the Chief Justice of India (CJI) from the selection committee responsible for appointing members of the Election Commission of India (ECI).
The Bench of Dipankar Datta and Satish Chandra Sharma made it clear that the judiciary could not compel the Parliament to enact a law, since it fell within the exclusive legislative domain of Parliament and was not subject to a writ of mandamus.
The Apex Court also referred to its earlier ruling in Anoop Baranwal v. Union of India, where it had directed that the CJI be part of the selection panel as an interim measure. It clarified that this arrangement was only a stop-gap mechanism to operate in the absence of a statutory framework, and once Parliament enacted a law, the validity of that law would have to be examined independently on constitutional grounds.
The petition, filed by Congress leader Jaya Thakur, challenged the 2023 law on the ground that it violated the principle of free and fair elections, which was part of the basic structure of the Constitution. The petitioner argued that the composition of the selection committee, comprising the Prime Minister, a Union Cabinet Minister and the Leader of Opposition in the Lok Sabha, effectively gave the executive branch a dominant role in appointments, thereby undermining institutional independence and neutrality.
Senior Advocate Vijay Hansaria, appearing for the petitioner, contended that the law fails the test of reasonable classification under Article 14 and lacks a rational nexus with the objective of ensuring an independent Election Commission. He argued that candidates who are almost entirely selected through executive influence cannot guarantee impartiality, and that the exclusion of the Chief Justice of India dilutes the safeguards envisaged by the Constitution Bench in the Anoop Baranwal judgment.
The Court, however, raised concerns about the maintainability of the relief sought, particularly the prayer asking the judiciary to direct Parliament to frame a specific law. It emphasised that while judicial review can be exercised to test the constitutional validity of a statute, courts cannot dictate legislative policy or compel enactment of a particular statutory framework.
Appearing for the Union government, Tushar Mehta sought an adjournment citing his engagement in the Sabarimala reference case. The Court declined this request, noting that the matter had been scheduled in advance and involved significant constitutional questions relating to electoral integrity and institutional independence.
Senior Advocate Gopal Sankaranarayanan argued that the core issue is whether Parliament can enact a law that effectively restores exclusive control of the executive over appointments. He submitted that such a framework would be contrary to the constitutional scheme and the ratio laid down in Anoop Baranwal, which held that the appointment process cannot be left solely to the executive. He further contended that any such departure would require a constitutional amendment, as it impacts core constitutional principles linked to democratic governance and the rule of law.
The petitioners also relied on constitutional history, including Constituent Assembly debates, to argue that the framers intended the Election Commission to function as an independent constitutional authority insulated from executive interference. They submitted that the current statutory framework introduces a structural bias by allowing the executive to retain effective control over appointments.
The Court indicated that the constitutional validity of the 2023 Act can be tested on established parameters, including arbitrariness, manifest unreasonableness, and violation of fundamental rights under Articles 14, 19, and 21 of the Constitution. The hearing will continue tomorrow.
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